Alliance for Conservation of Natural Resources in Pinellas County v. Furen, 547

• Decision Date: 01 August 1958
• Docket Number: No. 547,547
• Parties: The ALLIANCE FOR CONSERVATION OF NATURAL RESOURCES IN PINELLAS COUNTY, Florida, a Florida nonprofit corporation, et al., Appellants, v. Al W. FUREN et al., Appellees.
• Court: Florida District Court of Appeals

Page 803

104 So.2d 803

The ALLIANCE FOR CONSERVATION OF NATURAL RESOURCES IN PINELLAS COUNTY, Florida, a Florida nonprofit corporation, et al., Appellants, v. Al W. FUREN et al., Appellees.

No. 547.

District Court of Appeal of Florida, Second District.

Aug. 1, 1958.

Richard W. Ervin, Atty. Gen., Ralph McLane, Asst. Atty. Gen., aand T. M. Shackleford, Jr., Sp. Atty., Tampa, for appellants, State of Florida and Trustees of Internal Improvement Fund of State of Florida.

Noble C. Doss, Gulfport, for appellant, City of Gulfport.

Orr, Weiss & Simon, Miami, for appellants, Walter Anderson, Dana Boose, Robert W. Caldwell, Jr., Carter Rich, Marshall Stone, Audrey Frey, a married woman, by her next friend, Albert O. Frey, and Gail J. Caldwell, a widow, individually and as members of and for and on behalf of Taxpayers Protective Committee.

Knight Guild Aulsbrook, St. Petersburg, for appellants, Alliance for Conservation of Natural Resources in Pinellas County; Daisy K. Edwards; Edward F. Brantley; Mary E. Tracy; and Floyd L. Brown.

J. Velma Keen and C. H. Spitz of Keen, O'Kelley & Spitz, Tallashassee, J. Hardin Peterson and J. Hardin Peterson, Jr., Lakeland, for appellees.

ALLEN, Judge.

This case is before this Court on a motion to dismiss the appeal. The appellees applied to the Pinellas County Water and Navigation Control Authority for a permit to fill certain lands in Boca Ciega Bay. The matter was referred by the Authority to an Examiner who made his recommendations and findings to the Authority. He recommended the granting of the permit. Thereafter, the Board of County Commissioners of Pinellas County, sitting as the Pinellas County Water and Navigation Control Authority, granted the permit and on petition for rehearing, denied said petition.

An appeal was taken from the denial of the petition for rehearing to the Circuit Court of Pinellas County, which court affirmed the action of the Pinellas County Water and Navigation Control Authority. The appellants appealed the order and decisions of the Circuit Court to this Court.

The motion to dismiss the appeal raises the question of the jurisdiction of this Court to hear said appeal. Chapter 31182, Laws of Florida, Special Acts of 1955, created the Pinellas County Water and Navigation Control Authority, authorizing it to regulate and control submerged and overflow lands and other sovereignty lands in Pinellas County. The Act provided for public hearings on applications for permits, authorized the Control Authority to make findings of fact according to standards set forth in the Act, and provided for the right of re-hearing and the right of appeal from orders of the Control Authority.

The last paragraph of Section 8(e) of Chapter 31182, supra, provides:

'Any person, firm or corporation, including the state of Florida, Pinellas county and any municipal corporation in said county, who is aggrieved by the Board's ruling on the petition for rehearing shall have the right to have the entire cause reviewed by the Circuit Court of the Sixth Judicial Circuit of Florida in and for Pinellas county as provided by law for other appeals to the Circuit Court.'

The appellants argue that the Circuit Court should not be considered as an appellate court in this case, but as a trial court. If the Circuit Court should be deemed a trial court under its duties as set forth in Chapter 31182, supra, then this court would have the right to determine this case under its constitutional authority to hear appeals, etc. from trial courts. Fla.Const.Art. V, Sec. 5(c), F.S.A.

Several Florida Statutes, in many respects similar to Chapter 31182, supra, provide for appeals to the Circuit Court from decisions of various commissions or boards. A few of these statutes are hereinafter mentioned. Chapter 509, Florida Statutes, F.S.A., among other things, created a Hotel and Restaurant Commission which is authorized to make rules and regulations to carry out the purposes of the Chapter, to conduct hearings, and, through inspectors, to police he hotel and restaurant businesses in the State. Section 509.261, Florida Statutes, F.S.A., provides for the revocation or suspension of licenses, etc., and subsection (c) provides for appeals as follows:

'Proceedings of the hotel commission may be reviewed by certiorari to the circuit court of the circuit in which such licensed establishment is located and appeals from any decision of the circuit court may be taken to the supreme court of Florida in the same manner and subject to like conditions as appeals in chancery are taken.'

There have been several cases appealed to the Supreme Court of Florida from decisions of the Circuit Court on certiorari under the above act, including: In re Sea Island Corp., Fla.1953, 64 So.2d 769; In re Smith, Fla.1954, 74 So.2d 353; and Florida Hotel and Restaurant Commission v. Dowler, Fla.1958, 99 So.2d 852.

In the case of Florida Hotel and Restaurant Commission v. Dowler, supra, the Supreme Court held that though under Constitutional Art. V, as amended, an appeal could no longer be prosecuted to the Supreme could no longer be prosecuted to the Supreme jurisdiction and authority to review judgments of the Hotel and Restaurant Commission where the appeal was perfected before July 1, 1957.

The Court further held that under the amended constitutional provision relating to courts after July 1, 1957, an appeal could not be prosecuted to the Supreme Court by petition for certiorari from a judgment of the circuit court which quashed an order of the Hotel and Restaurant Commission.

We cite the above statute and decision involving the Hotel and Restaurant Commission because of a similarity between such statute, with reference to appeals, and the part of Section 8(e) of Chapter 31182, supra, which provides for appeals.

Chapter 501 of the Florida Statutes, F.S.A., among other things, created the Florida Milk Commission and gave it various powers with reference to the issuance of licensees, etc. Section 501.09 relates to the issuance, revocation, etc. of licenses to milk dealers. Subsection (5) provides that any applicant aggrieved by the action of the commission may file a petition in error in the circuit court which shall, in turn, have jurisdiction to reverse, vacate, or modify such order. This section further provides that no court, other than the circuit court, may review, suspend or delay any order made by the commission with reference to a license and 'all rights of appeal from a decree in the circuit court, in chancery, shall exist and be preserved as in other cases'.

In the recent case of National Dairy Products Corporation v. Odham, Fla.1958, 100 So.2d 394, 395, the Supreme Court, in an opinion by Mr. Justice Hobson, said:

'Under the Codomo case, supra (Codomo v. Shaw, Fla.1958, 99 So.2d 849), the appellate procedure provided for in F.S. § 501.09(5), F.S.A. has been superseded by the Florida Appellate Rules and the challenged orders are reviewable only by petition for certiorari as provided by the Rules. Also, as in the Codomo case, no powers have been provided by law which would authorize the district courts of appeal to review the orders complained of. Jurisdiction to review such orders is presently lodged only in this court and in the circuit courts. As a matter of judicial administration, this court will not ordinarily issue the writ of certiorari to review the rulings of an administrative board so long as a court of inferion jurisdiction as empowered to issue it. Accordingly, under Rule 2.1, subd. a(5)(d), Florida Appellate Rules, the petition for certiorari and other papers filed in this court will, at the expiration of five days from the filing of this opinion, be transferred to the Clerk of the Circuit Court of the Second Judicial Circuit, Leon County, Florida. * * *'

In the case of Codomo et al. v. shaw et al., Fla.1958, 99 So.2d 849, 851, the Florida Supreme Court held that under Article V, Section 6(c) of the Constitution, as adopted in 1956, the Supreme Court and the Circuit Court had jurisdiction to review by certiorari final orders of the Real Estate Commission, and that the District Court of Appeal did not.

The Court further held that the statutory right of appeal to the circuit Court from a final order of the Real Estate Commission (Section 475.35, Fla.Stat., F.S.A.) was removed by elimination of the constitutional provision giving circuit courts appellate jurisdiction of such matters as the legislature might provide; that such statute was superseded by the appellate rule providing that appellate review of rulings of any commission or board shall be by certiorari; and that, therefore, appeal would not lie to circuit courts from final orders of the real Estate Commission suspending registration of real estate brokers.

Section 475.35, Fla.Stat., F.S.A., hereinabove referred to, provides:

'(1) The defendant may appeal from a final order of the commission to the circuit court of the county from which he applied for registration * * * If such appeal is taken to the circuit court of some other county, it shall not for that reason alone be dismissed, but, if objection be made, it shall be transferred to the circuit court of the proper county upon order of the court to which the appeal was originally taken * * *. Such appeal shall be taken by filing a notice of appeal with the clerk of appellate court within thirty days after a copy of the final order of the commission * * * (Italics ours).

'(2) The party taking an appeal to the circuit court shall be the appellant therein, and the original plaintiff and the commission shall be the appellees. * * *

'475.36 Appeal to supreme court.-- If an appellant or the appellees in any appeal under § 475.35 shall be dissatisfied with the judgment of the circuit court, such party or parties may appeal therefrom to the supreme court within thirty days after the entry of the judgment and in the manner prescribed by the statutes and the rules of the supreme court as...